A law for the Justice, but not for the law-maker

Nazir Ahmed says it is unacceptable that a British citizen of Bangladeshi origin can become the Chief Justice of Bangladesh – but not an MP!

Constitutionally a dual citizen (e.g., a British citizen of Bangladeshi origin) can become the Chief Justice of Bangladesh (by becoming a High Court Judge, then a Judge of the Appellate Division of the Supreme Court and then the Chief Justice), but he or she cannot stand in a General Election (parliamentary election) to become a Member of Parliament (MP). Not only this, when the constitution provided for caretaker governments to be appointed in certain circumstances, a Chief Justice who was a British citizen of Bangladeshi origin could, upon retirement, have become the Head of Government by becoming the Chief Advisor of the Caretaker Government – without needing to be an MP. How funny the provision was and still is! This may look awkward and inconsistent, but this is allowed for and is the reality under the current constitutional provisions in Bangladesh.

Let us look at the constitutional provision in relation to the appointment of a High Court Judge and at the eligibility criteria for standing to become an MP. According to Article 95 of the constitution, a person shall not be qualified for appointment as a Judge unless he or she is a citizen of a Bangladesh and

(a) has, for not less than ten years, been an Advocate of the Supreme Court of Bangladesh; or

(b) has, for not less than ten years, held judicial office in the territory of Bangladesh; or

(c) has such other qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court.

On the other hand, in relation to the criteria for qualification and disqualification for election to Parliament, Article 66 of the constitution says, inter alia:

(1) a person shall subject to the provisions of clause (2), be qualified to be elected as, and to be, a Member of Parliament if he is a citizen of Bangladesh and has attained the age of twenty-five years,

(2) a person shall be disqualified for election as, or for being a Member of Parliament who –

(a) is declared by a competent court to be of unsound mind;

(b) is an undischarged insolvent;

(c) acquires the citizenship of, or affirms or acknowledges allegiance to, a foreign state;

(d) has been, on conviction of a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release;

(dd) holds any office of profit in the service of the Republic other than an office which is declared by law not to disqualify its holders;

(g) is disqualified for such election by or under any law.

The above constitutional provisions clearly show that one would have to be a citizen of Bangladesh to become a High Court Judge or MP. There is no doubt on this. However, a dual national of Bangladeshi origin (e.g,. British-Bangladeshi) can become a High Court Judge (there is no barrier to this in Article 95 of the Constitution), but s/he cannot become an MP (see Article 66 [2][c] of the Constitution). I am not proposing that a dual national of Bangladeshi origin should not be allowed to become a High Court Judge. Rather, I am in favour of allowing all dual nationals of Bangladeshi origin to take an active part in each and every sector of the state, including the Supreme Court and Parliament. In fact, currently we have quite a few judges in the Supreme Court who have dual nationality and they have been performing their duties confidently and competently. They have, by now, shown their outstanding wisdom and ability. A dual national of Bangladeshi origin cannot become an MP unless s/he renounces his/her foreign nationality. If a person is a dual national (i.e., a British citizen of Bangladeshi origin – but a Bangladeshi citizen by birth, though), s/he must renounce his or her British citizenship before submitting nomination paper for a parliamentary election.

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Now the question is, who performs the more important tasks: a High Court or Supreme Court Judge or an MP? I would not attempt to answer the question: rather, I shall leave it to our readers – the general public. However, what I would say is that the tasks of the High Court and Supreme Court Judges are in no way less important those undertaken by MPs. High Court Judges are considered to be guardians of the constitution. They are the protectors of the fundamental rights of the citizens of the Republic enshrined in Part III of the constitution. They have inherent power and original jurisdiction. When taking their oaths on their appointment, the High Court and Supreme Court Judges and the Chief Justice recites, among other pledges, “That I will preserve, protect and defend the constitution and the laws of Bangladesh,” (third schedule: article 148 of the Constitution: Oaths And Affirmations). Although MPs are considered to be law makers, they do not (in fact, they are not required to) utter these words when taking their oaths.

With the passage of time a High Court Judge will be elevated to the Appellate Division of the Supreme Court and then s/he could, at the appropriate time, be appointed as the Chief Justice of Bangladesh (Article 95[1] of the Constitution). Naturally s/he will retire at the age of 67 (Article 96[1] of the Constitution). Under the constitutional provision in place before the Fifteenth Amendment, the last Chief Justice to have retired would have become the Chief Advisor of the Caretaker Government (Article 58C of the constitution before the Fifteenth Amendment). As we all know, during the tenure of a Caretaker Government, the Chief Advisor enjoys the status and privileges of a Prime Minister (Article 58C[11] of the constitution before the Fifteenth Amendment). Now it looks funny that a dual national of Bangladeshi origin could have become the Head of Government and could have seen and signed all the confidential files of the state – but he or she cannot be an MP!

The time has come to reconsider this anomaly. If a dual national – a British citizen of Bangladeshi origin – could have become the Head of the Government before the Fifteenth Amendment, if s/he can aim to become the Chief Justice of Bangladesh why can the same person not aim to become an MP? What is the point of keeping an unreasonable barrier in the constitution which prevents a dual national of Bangladeshi origin becoming an MP? What purpose is this provision supposed to serve? What advantage is it intended to confer?

It should be noted that in order to stand in a British parliamentary election, one does not even need to be a British citizen – though candidates who are not British citizens need to be a citizen of a Commonwealth country or the Republic of Ireland. Nor does a candidate need to be an elector in the constituency where they are standing. S/he only needs to have the permanent residence status in the UK (holding indefinite leave to remain)! S/he does not even need to renounce his/her original foreign nationality. If a Bangladeshi citizen who has indefinite leave to live in the UK can stand in a British parliamentary election, why can someone who is a Bangladeshi citizen by birth, having acquired British citizenship by naturalisation as opposed to by birth, not stand to become a Member of Parliament in Bangladesh? Do we pretend to be more democratic than British?

Honourable Minister Syed Ashraful Islam

The influential Honourable Minister Syed Ashraful Islam (who is also the Secretary General of the ruling party) said, in a public meeting in London few years ago, that expatriate British Bangladeshis should not only be given voting rights but they should also be able to stand in parliamentary elections to become MPs. We have been reassured by his declaration. A declaration from a heavyweight minister carries, no doubt, much weight. We believe the Honourable Minister and his Party and Government will bring this declaration into reality by bringing appropriate amendment to the constitution.

Bangladesh would benefit immensely if dual nationals were given the chance to make a contribution to nation-building politics. Dual nationals of Bangladeshi origin (who are well settled and established overseas) would probably gain little from but have a lot to contribute to a developing country like Bangladesh. We have thousands of dual national graduates (who have graduated from world class universities, such as Oxford, Cambridge, Harvard, London and Heidelberg universities, etc.) and diverse professionals. They can utilise their invaluable talents in taking their homeland forward if they are given chance. They may have taken foreign citizenships by way of naturalisation as an advantage and privilege for practical reasons, but they have not given up their original nationality acquired through birth. They are not required to give up their nationality of origin. They should not be ignored – and if they are, Bangladesh will be the ultimate loser. The influential Honourable Minister Mr Syed Ashraful Islam himself was an expatriate – who lived and worked for a long period in London. No one would better understand the potential of British-Bangladeshis than him.

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Nazir Ahmed LLB Hons (London), LLM (London), FCIArb and Principal, Lincoln’s Chambers Solicitors is a UK-based legal expert, analyst, writer and columnist.

He can be contacted via email: lc.solicitors@yahoo.co.uk

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